Federal Court Denies Summary Judgment Under Massachusetts Statute of Repose, But Grants Defendants’ Motions on Other GroundsU.S. District Court for the District of Massachusetts, March 30, 2018

MASSACHUSETTS — The plaintiffs allege that the decedent, Wayne Oliver, developed mesothelioma from bystander exposure to asbestos during his work as a pipe inspector on the construction of two power plants in the 1970s. Defendant General Electric Company (GE) specified and produced steam turbine-generators for the power plants, and supervised their installation. Defendant NSTAR, formerly known as Boston Edison Company (NSTAR/BECO), owned one of the power plants during the time of the decedent’s work. The decedent worked for non-party Bechtel Corporation, who acted as the owner’s architect/engineer, and who specified and procured all construction materials for the projects, with the exception of the GE turbine-generators. Both defendants moved for summary judgment on statute of repose and other grounds. GE’s motion was denied on statute of repose grounds, but granted on others. NSTAR/BECO’s statute of repose motion was deemed inapplicable, but their summary judgment motion was granted on all other grounds.

Massachusetts’ statute of repose, Mass. Gen. Laws ch. 260, § 2B (“Section 2B), puts forth a six-year limit for the commencement of any tort action alleging deficiency or neglect in the “design, planning, construction, or general administration of an improvement.” The court acknowledged that the Massachusetts Supreme Judicial Court had not considered the application of Section 2B to asbestos claims before offering its own analysis. The court first recognized that Section 2B didn’t define “improvements to real property,” but unequivocally expressed its own position that “(t)he nature of the activities enumerated in Section 2B – design, planning, and construction – clearly contemplate the process of improvement as well as the finished product, and thereby reach integral components like asbestos-containing insulation.” However, the court declined to apply the statute of repose in this instance, noting that GE had “control of the site at the time of {Decedent’s} exposure, conducted regular on-site maintenance and inspections for at least two decades after construction was complete,” and was not like the typical, intended beneficiaries of statutes of repose who terminated their connection with a construction site many years in the past. The court went further to state that application of the statute in this instance would lead to absolute immunity, and that it isn’t clear that Section 2B was designed to disallow asbestos claims, which have a latency of at least 20 years. The court declined to allow NSTAR/BECO the benefit of the protection of the statute of repose, finding that Section 2B does not limit the liability of an owner of property.

The court applied Maritime law for GE’s summary judgment motion as to negligence and breach of warranty for naval exposure arising out of Decedent’s work aboard Navy vessels at the Fore River Shipyard in Quincy, Massachusetts, and declined to extend liability for component parts that were not distributed or manufactured by GE. The court also granted GE’s motion for summary judgment on Plaintiffs’ count for punitive damages, as the Massachusetts wrongful death statute views them as an element of damages, rather than a separate cause of action.

Regarding NSTAR/BECO, the court granted their summary judgment motions on product liability counts, noting that they never manufactured, supplied or sold asbestos-containing products. The court further granted NSTAR/BECO’s summary judgment as to the plaintiffs’ strict liability count, finding that asbestos work is “not abnormally dangerous where its risks may be mitigated through the exercise of reasonable care,” that the use of asbestos was common in the time of the decedent’s exposure, and that the balance tips in favor of NSTAR/BECO given the region’s energy needs at the time that the power plants were built.

NSTAR/BECO’s motions for summary judgment on the plaintiffs’ negligence theories received lengthier analysis. In looking at the vicarious liability theory, the court cited the contract between NSTAR/BECO and the decedent’s employer Bechtel, and determined that Bechtel controlled the “means, methods, manner, and safety” of the power plant construction. The decedent’s own testimony supported the contractual rights of the parties, as he stated that his Bechtel supervisors directed his work, and that NSTAR/BECO never told him how to do his work, nor did their employees do any hands-on work on the site themselves. Regarding the plaintiffs’ landowner liability theory, the court concluded that NSTAR/BECO did not have a duty to warn of an unknown hazard, as all parties entered the construction premises with “at least as much knowledge of the presence of asbestos” as NSTAR/BECO.

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